California State Assemblyman Mike Gatto introduced legislation Monday that, if passed, would require college campus police to report violent crimes to local law enforcement unless the alleged victim explicitly asks that his or her report not be shared. The bill, AB 1433, would govern reports of homicide, forcible rape, robbery, aggravated assault, and hate crimes. It was drafted in response to allegations that Occidental College violated the Clery Act when it failed to properly disclose information about campus crimes. Some Occidental students also claimed that they were discouraged from reporting assaults to the police. By making reporting a crime to the local police the default procedure, the bill is intended to increase the number of cases that are decided by the criminal justice system, as opposed to just a campus disciplinary hearing.
University of California at Berkeley students Sofie Karasek and Aryle Butler, who identified themselves as sexual assault survivors, persuaded Gatto to add the opt-out clause, explaining that many sexual assault victims prefer not to report their cases to the police. Butler said that she would have chosen not to file a report in her case if she knew that reporting would result in a police investigation. Many victim advocates cite hostility from police officers, the emotionally difficult process of going through the criminal justice system, and the perceived small chance at a guilty verdict as factors that influence victims not to report assaults.
The bill is a step in the right direction. By mandating reports to the police (absent contrary direction from the alleged victim), the bill would send a clear reminder to schools and students that sexual assault is a serious crime prohibited by law, not simply a “conduct code violation” to be left to a campus judicial system. The fact that nearly three dozen colleges and universities are currently being investigated by the Department of Education’s Office for Civil Rights for Title IX violations—and complaints about insufficient responses to sexual misconduct allegations keep rolling in—suggests that colleges are unqualified to investigate and adjudicate these violations. And last year, Student Press Law Center attorney Adam Goldstein illustrated the inadequacy of campus procedures for sexual misconduct in an article for The New York Times:
Let’s assume someone is guilty of sexual assault. If that individual is sent to the criminal justice system, the worst case scenario is that he’s acquitted, which results in a rapist walking the streets. If that individual is sent to the campus disciplinary system, the best case scenario is that he’s expelled, which results in a rapist walking the streets.
Campus hearings for violent crimes often fail not just the accuser and the community at large, but also the accused, as they typically lack the procedural safeguards that exist in criminal trials in order to ensure a fair hearing. Between the possibility that a criminal will remain on the streets and the risk that a student will be found guilty of sexual assault without due process, campus disciplinary hearings create opposite but dangerous potential outcomes for all parties involved.
Victims’ rights advocates point to flaws in the criminal justice system, too. But rather than attempting to make campus disciplinary procedures an alternative justice system tasked with adjudicating violent crimes—a serious task, one for which campus administrators lack proper expertise—the focus should be on improving law enforcement’s handling of campus sexual assault cases. Schools have both a legal and a moral responsibility to ensure the safety of their students, but they are educational institutions, not courts. Schools—be they community colleges, public colleges, or their private counterparts—routinely state in one way or another in their student handbooks that disciplinary hearings are not “mini trials” and students should not expect a “courtroom environment.” This doesn’t mean that they should be forgiven for their inadequate procedures; it means they should not be expected to take on the burden of deciding who is guilty or innocent of violent crimes. Colleges should do what they have the ability and the expertise to do: make administrative arrangements, such as issuing no-contact orders and changing housing arrangements, and provide counseling for reporting students to ensure a secure campus environment while law enforcement and the justice system resolve the case.
FIRE commends Assemblyman Gatto for his efforts in helping to ensure that violent crimes committed on campus are investigated by trained officials and subject to a process designed to protect all parties involved. FIRE will keep an eye out for updates on the bill’s progress.
Image: California State Capitol building – Wikimedia Commons